Saturday, November 5, 2011
The Faculty of Law at the University of New South Wales is holding a conference entitled “Dispute Resolution in the Next 40 Years – Repertoire or Revolution.” It’s part of UNSW Law’s 40th Anniversary celebrations and will take place in Sydney, Australia on December 1-2, 2011. From the brochure:
Dispute Resolution is adapting and developing in response to the demands of Australian society and the global community. A greater range of dispute resolution mechanisms have developed and courts have sought to improve and streamline their procedures.
UNSW Law's 40th Anniversary Conference Dispute Resolution in the Next 40 Years – Repertoire or Revolution examines how dispute resolution may develop in the future and what the ramifications of those developments may be. This important question is addressed by the keynote speakers Lord Justice Jackson, Lord Justice of Appeal, UK Court of Appeal and author of the UK “Review of Civil Litigation Costs” and The Hon Thomas F Bathurst, Chief Justice, Supreme Court of NSW.
The conference brings together an outstanding collection of internationally and nationally renowned thoughtleaders to address important practical questions such as the future role of the judge, matching dispute resolution processes with disputes, the provision of access to justice to multiple claimants through class actions, the role of lawyers in alternative dispute resolution processes, the future options for international dispute resolution and reform of civil procedure through international comparisons.
More information available here.
(Hat Tip: Michael Legg)
Friday, November 4, 2011
Florida International University College of Law is hosting the Fourth Annual Junior Faculty Federal Courts Workshop in Miami on February 2-4, 2012. If you’re interested in participating, the deadline for submitting an abstract is Tuesday, November 15.
More details available at PrawfsBlawg.
(Hat Tip: Howard Wasserman)
Thursday, November 3, 2011
Kathryn E. Spier (Harvard Law School, NBER) and David Rosenberg (Harvard Law School) have posted On Structural Bias in the Litigation of Common Question Claims to SSRN.
This essay focuses on civil litigation that involves multiple plaintiffs suing a single defendant for damages or equitable remedies on causes of action that raise the same or similar legal and factual claims and / or defenses. Such common question claims comprise a large fraction of U.S. civil actions, ranging from the relatively simple traffic accident involving personal injury claims by two or more occupants of one car charging the driver of the other car with negligence to large-scale litigation consisting of numerous plaintiffs suing a business or government defendant on costly and complex claims. Examples of large-scale common question litigations include claims of products liability, securities fraud, deceptive consumer practices, corporate misgovernance, environmental pollution, employment discrimination, and unconstitutional state action. All common question litigation proceeds either by plaintiffs prosecuting their claims respectively in separate, individual actions or collectively in joint actions, voluntarily formed or judicially mandated such as by class action.
Using an analytical model, we explore the effects of the mode of action – separate versus joint – on the plaintiffs’ and the defendant’s respective incentives to invest in litigating outcome-determinative common questions. We demonstrate a general and heretofore largely unrecognized correlation between separate actions and litigants’ investment incentives that implies the existence of a structural bias favoring defendants in common question litigation. Essentially, in a given separate action the defendant spends to defeat all plaintiffs, while each individual plaintiff spends only to win for himself; in a joint action, both sides have equivalent aggregate investment incentives and hence there is no structural bias. Analytical demonstration of why and how such asymmetric investment incentives arise and structurally bias outcomes in separate but not joint actions sets the stage for consideration of the public policy implications. In particular, we discuss the potentially adverse consequences of vesting defendants with such superior litigation power over plaintiffs in separate actions for achieving the primary social objective of civil liability, deterrence of unreasonably risky behavior.
Symposium on CERCLA and the Future of Liability-Based Environmental Regulation (Southwestern Law School, Nov. 11)
The Southwestern Law Review is hosting a symposium on November 11, 2011 entitled CERCLA and the Future of Liability-Based Environmental Regulation. From the announcement:
Enacted in 1980, CERCLA takes a unique approach to federal environmental regulation. Unlike other major federal environmental statutes, CERCLA addresses soil and groundwater contamination through a tort-like liability scheme imposing joint and several, retroactive liability on broad classes of covered persons to clean up contaminated property. With billions of dollars in aggregate cleanup costs at stake, CERCLA has generated substantial and unrelenting litigation over the past three decades that will likely continue for years to come.
CERCLA presents challenging issues about the relationship between federal and state pollution laws on topics ranging from regulatory oversight to toxic torts. Some accuse CERCLA's broad liability scheme and remediation process requirements (the "national contingency plan") of fostering sprawl by discouraging in-fill property development. Others object to federal and state "brownfield" laws promoting more streamlined in-fill remediation on environmental justice grounds. The U.S. Supreme Court's recent decisions in Aviall, Atlantic Research and Burlington Northern raised new questions about the scope of CERCLA liability, the extent of public and private cost recovery rights, and incentives for polluters to settle CERCLA liabilities with regulatory authorities.
The full schedule is available here.
(Hat Tip: Ron Aronovsky)
Wednesday, November 2, 2011
The Federal Judicial Center has released a report to the Advisory Committee on Civil Rules entitled The Timing of Scheduling Orders and Discovery Cut-Off Dates, authored by Emery G. Lee III. Here’s the executive summary:
This report summarizes findings on the timing of scheduling orders and discovery cut-off dates in more than 11,000 civil cases filed in 11 districts in 2009 and 2010. The first part of the report examined times from the filing of the case to issuance of the first scheduling order.
• The median time from filing to first scheduling order was 106 days, or 3.5 months (N = 11,483). The comparable mean was 126.1 days, or 4.1 months.
• The 11 districts studied had median times from filing to first scheduling order that ranged from 77 days, or 2.5 months, to 125 days, or 4.1 months, for a difference of 1.6 months.
• The nature-of-suit category with the shortest median time from filing to first scheduling order was torts, at 97 days, or 3.2 months. Complex and the catch-all other cases had longer medians (121 and 122 days, or 4 months).
The same analysis was performed for times from entry of the first scheduling order to first imposed discovery cut-off (i.e., the discovery cut-off date in the scheduling order).
• The median time from entry of the first scheduling order to first imposed discovery cut-off, without regard to any extension, was 187 days, or 6.2 months (N = 11,348). The comparable mean was 198.6 days, or 6.5 months.
• The 11 districts had median times from entry of the first scheduling order to first imposed discovery cut-off that ranged from 143 days, or 4.7 months, to 240 days, or 7.9 months, for a difference of 3.2 months.
• The nature-of-suit category with the shortest median time from entry of the first scheduling order to first imposed discovery cut-off was the catch-all other category, at 157 days, or 5.2 months. The contracts (6.6 months) and complex (7.1 months) categories had the longest observed medians.
These two analyses can be combined to capture the time from the filing of the case to first imposed discovery cut-off date.
• The median time from filing to first imposed discovery cut-off for all cases (N = 11,281) was 312 days, or 10.2 months. The comparable mean was 324 days, or 10.7 months.
• Districts ranged from a median time from filing to first imposed discovery cut-off of 252 days, or 8.3 months, to 378 days, or 12.4 months, for a difference of 4.1 months.
• In terms of nature-of-suit categories, the category with the shortest median time from filing to first imposed discovery cut-off was consumer, at 295 days, or 9.7 months. The longest median time from filing to first imposed discovery cut-off was observed in complex cases, 359 days, or 11.8 months (or about one year).
Monday, October 31, 2011
I have written a slightly longer opinion piece about Wal-Mart for the Westlaw Class Action Journal entitled The New Commonality: Rule 23(a)(2) After Wal-Mart v. Dukes. It's behind a paywall, but can be accessed here or at the citation 18 No. 9 Westlaw Journal Class Action 2.
Prof. Judith Resnik (Yale) has posted on SSRN Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011). Here’s the abstract:
Can eighteenth-century constitutional commitments that “courts shall be open” for private rights enforcement be coupled with twentieth-century aspirations that democratic orders provide “equal justice under law”? That question sits at the intersection of three cases, AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, decided in the 2010 Supreme Court Term. In each decision, Justices evaluated the fairness of particular procedures (class arbitrations, class actions, or civil contempt processes) when making choices about the meaning of governing legal regimes — the Federal Arbitration Act (FAA) and state unconscionability doctrine in AT&T; Rule 23 and Title VII in Wal-Mart; and the Due Process Clause and child support obligations in Turner.
AT&T and Wal-Mart presented related questions about how the form of dispute resolution (individual or aggregate) and the place of dispute resolution (public or private, state or federal) affect the level of public regulation of consumer and employment transactions predicated on boilerplate, rather than negotiated, terms. The issue in Turner was whether state-funded lawyers were required before a person could, at the behest of the child’s custodian, be incarcerated for contempt for failure to pay child support. The specific case involved two individuals, but their circumstances illustrated the challenges faced by millions of other lawyer-less litigants in state and federal courts.
Each case exemplifies the challenges that new rights, produced by twentieth-century social movements, pose for courts. When claimants such as consumers, employees, and household members presented themselves as entitled to equal treatment, jurists responded by interrogating their own procedural parameters. Relying on the Due Process Clause, courts developed distinct lines of analyses that — depending on the context — imposed criteria on decisionmaking procedures, mandated subsidies to address resource asymmetries between adversaries, shaped processes to reduce intra-litigant disparities, and facilitated access to courts. Requisite to those efforts was a practice that is intertwined with fairness — the public quality of adjudication that endows an audience with the authority to watch, critique, and respond through democratic channels to the legal norms announced. A “fair and public hearing” became a touchstone of what democratic orders required their courts to provide.
But, as this trio of cases demonstrates, whether seeking to implement those egalitarian aspirations or simply to function, courts have to grapple with economically disparate claimants and a vast volume of eligible rights holders. If eighteenth-century constitutional entitlements to open courts are to remain relevant to ordinary litigants, the question is not whether to aggregate, subsidize, and reconfigure process but how to do so “fairly,” in terms of what groups, which claims, by means of which procedures, and offering what remedies. But without public disclosures and oversight of dispute resolution — in and out of court, single file and aggregated — one has no way to know whether fairness is either a goal or a result.